No Promise From Father to Pay Daughter’s Legal Bills

by familyllb on June 19, 2012

No Promise From Father to Pay Daughter’s Legal Bills

I have another “father”-themed post this week, this time about a father who was recently found by an Ontario court to have no independent obligation to pay his daughter’s unpaid legal bills to a firm that represented her in her matrimonial dispute.

In the recent case of Jaskot v. MacDonald, the plaintiff was a law firm called “Jaskot Family Law Barristers Professional Corporation” (the “Jaskot Firm”). It was suing the defendant MacDonald, for payment of its legal bill for services rendered in connection with representing MacDonald’s daughter on a family law matter.

However, MacDonald disputed that he had any obligation to pay for his daughter’s legal representation at all.

The reason the matter had to come before the court for resolution was that the daughter, who had hired the Jaskot Firm under a written and signed retainer in 2008, had gone bankrupt about a year later. She owed the firm about $84,000 in fees; the bill remained unpaid and – being unable to collect from the bankrupt daughter – the Jaskot Firm sued her father, MacDonald.

The Firm chose to look to MacDonald for payment because he and his wife had been involved in his daughter’s litigation, by attending some meetings and giving her advice on how to proceed. More to the point, it claimed that MacDonald had expressly agreed to pay their daughter’s legal fees, which promise was not predicated on the daughter not paying her bill – i.e. it was an unconditional promise to pay (which in law is an indemnity). The Firm came to court to enforce this alleged promise by MacDonald.

These legal assertions were based on two conversations between MacDonald and the principal of the Jaskot Firm, which were held at the firm offices and were tape-recorded on consent of all the participants. For example at one of these meetings, which was attended by MacDonald, his wife, and the daughter, MacDonald is recorded as saying “I am speaking for both my wife and I and like I say as far as fees are concerned, you must know that we have paid all of your fees because she couldn’t.” At a second meeting – held after a 4-day trial with a rather unfavourable outcome – MacDonald in the presence of his wife, daughter and a Jaskot Firm lawyer again made a statement that he and his wife would “pick up the lawyer’s bill and your will bill will be paid”.

The Jaskot Firm relied on these statements as sufficient to establish MacDonald’s legal liability to pay his daughter’s bills; the Ontario court was asked to rule on the matter.

In doing so, the court noted that the retainer on file at the Jaskot Firm – which was comprehensive and detailed – was signed in April 2008 by the daughter only, not the parents. In fact, there is no mention of the parents at all in that document. There was also evidence that the daughter alone consider herself obliged for her legal fees.

Next, there was evidence that the daughter had periodically asked her parents for money, when she was unable to pay her legal or other bills. Sometimes she would ask for a loan; other times her parents considered the money a gift. Also, it was true that MacDonald would sometimes make direct to the lawyers on his daughter’s behalf; however the daughter gave evidence that this was done because she was given advice not to keep money in her accounts, since they would be traceable, subject to seizure, or used as evidence in the family litigation.

Most importantly, the court concluded that the statements made by MacDonald at the various meetings at the Jaskot Firm simply did not amount to a promise to answer for the daughter’s debt or default; they could not be considered an independent promise to pay along the lines of a legal indemnity. When MacDonald told the Jaskot Firm lawyer during the taped meeting that they had paid the daughter’s bills in the past, they were not saying that she could not pay them in the future. Also, the comment by MacDonald that “I will pick up the lawyer’s bill” was a promise to the daughter, not to the lawyer. Moreover, the meetings and resulting taped discussions were of a conversational, yet emotionally-charged nature; one could not interpret MacDonald’s words as if he was choosing them after careful consideration and with the intent to create legal obligations to pay the daughter’s bill.

Finally, the court noted that while the parents in this case were clearly involved in supporting their daughter, they were not the decision-makers; the daughter may have taken her parents’ opinions into account, but the decisions in the litigation and conduct of the trial remained with her. This conclusion was supported by the fact that the Firm’s legal bills were always sent to the daughter for payment and not to MacDonald directly; and they were never considered by the Firm to be in arrears.

With all those facts in mind, the Jaskot Firm could not credibly assert that they understood from MacDonald and his wife that they were to be directly responsible to pay the daughter’s legal bills.

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About FamilyLLB

FamilyLLB is written by Russell Alexander, a divorce and family law lawyer based in Ontario, Canada. For nearly twenty years, Russell's firm has helped clients who are going through a separation or divorce. You can find more of Russell's online commentary via Twitter, Google+, LinkedIn, or on the firm's Facebook page.